The petitioner/defendant has filed this civil revision petition as against the order dated 16.09.2009 in I.A.No.307 of 2009 in O.S.No.643 of 2006 on the file of the Principal District Munsif Court, Erode in passing an additional order directing the petitioner to deposit half of the decree amount on or before 29.09.2009 etc.
2. The trial Court while passing the order in I.A.No.307 of 2009 dated 16.09.2009 has inter alia opined that 'the revision petitioner has filed the petition only in the month of November 2008 and there is no reason in the affidavit as to why such a delay has been caused for filing the petition to set aside the ex parte decree. It is to be also mentioned here that after decree the respondent filed an execution petition in order to realise the decree amount and the same is pending. Considering the submissions made on either sides, this Court finds that even though there is no record to prove that the petitioner was taking treatment, he must be given an opportunity to put forth his case and participate in the suit proceedings. However, to show his bonafide the petitioner also be directed to deposit some heavy costs with the Court and resultantly, directed the petitioner to deposit half of the decree amount on or before 29.09.2009, failing which it has ordered that the petition shall stand dismissed and the matter has been directed to be called on 30.09.2009.
3. The learned counsel for the petitioner/defendant urges before this Court that the conditional order imposed by the trial Court in an application filed under Section 5 of the Limitation Act is contrary to law, and the trial Court has committed a manifest error on the facts and circumstances of the present case, and further, the trial Court ought to have allowed the application without imposing such an onerous condition that to deposit half of the decree amount which will cause great prejudice to the petitioner and the litigant should not be shut down from offering his defence by refusing to condone the delay in filing application to set aside the exparte decree even if the defendant has contributed to such delay and as a matter of fact the revision petitioner has stated that he has been suffering from illness due to which he has taken treatment at the out station which has prevented hi from filing the application in time and in any event the trial Court ought to have taken a lenient view and a liberal approach in allowing the application without any condition enabling the petitioner to project his defence and these aspects of the matter have not been adverted to, by the trial Court in a proper perspective and therefore, prays for allowing the civil revision petition in furtherance, of substantial cause of justice.
4. The Court notice on the respondent has been served as early as on 05.11.2009 and private notice has also been served on 26.10.2009. Inspite of the same, today there is no representation on the side of the respondent either in person or through counsel.
5. It is useful to refer to the averments made by the revision petitioner that in I.A.No.307 of 2009 before the trial Court where he has stated that the suit O.S.No.643 of 2006 has been decreed on 14.03.2008 and he has received the execution proceedings notice in September 2008 and after coming to know about the exparte decree being passed against him, he is not in a position to contact his Advocate at his office as he has been suffering from Jaundice from 04.03.2008 to 30.10.2008 and further, that he has been taking Ayurvedic treatment at Salem Kondappanaickenpatti and hence failed to file the petition in time. He has contacted his counsel on 03.11.2008 requiring him to file an application before the Court and there has occasioned a delay of 185 days in filing the set aside application and that it has been done neither willful not wanton but due to the aforesaid reason.
6. The respondent/decree holder has filed a counter to I.A.No.307 of 2009 inter alia stating that the suit has been decreed on 14.03.2008 and the said facts were well known to the petitioner even in the month of March 2008 itself and the petitioner has not disclosed about the details under what circumstances, he has not been in a position to attend the Court on 14.03.2008 and also how he has been unable to file the application under Order 9 Rule 13 application in time and further that the disease Jaundice is a curable one within a period of 15 to 20 days and 6 months treatment is an imaginary and unbelievable one and that the petitioner has deliberately delayed the filing of the application and therefore it is not maintainable in Law.
7. At this stage, the learned counsel for the revision petitioner/plaintiff cites the decision of this Court Pavayammal and another v. S.N.Chockalingam and 3 others 2009 (5) CTC 414 wherein this Court has observed that "Sufficent Cause to be interpreted in a purposeful and meaningful way and further the Judiciary is respected for power to remove injustice and not for its power to legalise injustice on technical grounds and overriding technicalities, substantial justice will have to be delivered to the parties."
8. He also relies on the decision N.S.Yamuna v. A.Venugopal 2000 (III) CTC 724 wherein it is inter alia held that "the petitioner has shown sufficient cause for her absence on date of passing of ex parte order in suit and the order directing the petitioner to deposit entire suit claim is very onerous and same is in excess of jurisdiction".
9. On going through the impugned order passed by the trial Court in I.A.No.307 of 2009 dated 16.09.2009, this Court is of the considered view that the trial Court has rightly given an opportunity to the revision petitioner to put forth his case since a matter cannot be thrown out at the nascent stage itself but the only grievance of the revision petitioner is that the trial Court ought not to have directed to deposit half of the decree amount on or before 29.09.2009 which is said to be a onerous and burdensome one.
10. As far as the present case is concerned it is not in dispute that the revision petitioner/defendant has received the notice in September 2008 and only thereafter he has projected the I.A.No.307 of 2009 in October 2008 before the trial Court. The time for setting aside the exparte decree is within 30 days from the date of passing of the said decree. In the instant case on hand the petitioner/defendant has knowledge about the passing of the exparte decree only after the receipt of the notice during September 2008 in the Execution Proceedings. Even though the decree has been passed on 14.03.2008 admittedly it is the case of the revision petitioner that he has received the notice in September 2008 and also immediately the revision petitioner has not filed the I.A.No.307 of 2009 and only during October 2008 he has passed the present I.A.No.307 of 2009. On going through the contents of the order passed by the trial Court in I.A.No.307 of 2009 this Court is of the considered view that the order of the trial Court in directing the petitioner to deposit half of the decree amount on or before 29.09.2009 failing which the petition shall stand dismissed and the matter to be called on 30.09.2009 cannot be said to be a onerous or burdensome one and the same to be construed only to mean that the petitioner has only been required to show his bonafide to contest the matter before Court and looking at from any point of view, on the basis of facts and circumstances of the case this Court comes to the conclusion that the impugned order does not suffer from material irregularity and patent illegality and viewed in this perspective the civil revision petition fails.
11. In the result, the civil revision petition is dismissed, leaving the parties to bear their own costs. However the petitioner is directed to deposit half of the decree amount within a period of 45 days from the date of receipt of the copy of this order and when the revision petitioner deposits half of the decree amount within the time determined by this Court, the trial Court is directed to take into account of the same when it decides the original suit finally and to pass appropriate orders in the manner known to law. Consequently, M.P.No.1 of 2009 is closed.
prm To The Principal District Munsif Court, Erode